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COMPARATIVE STADY
THE POWERS OF THE CONSTITUTIONAL COURTS OF GERMANY AND SPAIN FOR CONSIDERATION OF COMPLAINTS OF INDIVIDUALS ABOUT VIOLATIONS OF THEIR CONSTITUTIONAL RIGHTS AND FREEDOMS
DOI: http://dx.doi.org/10.14420/en.2015.5.1
Giyas Hanali oglu Nuriyev, PhD of Legal Sciences, Associate Professor, Associate Professor of The Department of The Theory of State and Law and Constitutional Law of Plekhanov Russian University of Economics, e-mail: [email protected].
Abstract. The powers of the Federal Constitutional Court of FRG and Spain's
Constitutional Tribunal for the consideration of the complaints of individuals about violations of their constitutional rights and freedoms and their corresponding proceeding features are the subject of the research of the article.
Keywords: competence, complaint, constitutional court, body of public authority,
rights and freedoms, the admissibility of the complaint, filtration, plaintiff, defendant, competitiveness.
First of all, it must be emphasized that the powers of the constitutional courts to consider appeals of individuals about violations of their rights and freedoms are not provided in all European legal systems, but they are among the classic. Moreover, this competence of the European Constitutional Courts and some features of the proceedings, inherent to it, are quite similar to the existing right of citizens for appeals in the Anglo-Saxon system, in particular, to the US Supreme Court, and accordingly on the features of proceedings of the latest (see: [Brugger, 1987: 105]) (for example, by the filtration of the appeals of citizens).
It should be noted that the power for consideration of complaints of citizens about violation of their rights and freedoms occurs only in Spanish (recurso de amparo) and German constitutional proceedings (Verfassungsbeschwerde).
«The powers of the constitutional courts...»
However, this authority and the corresponding procedural law can serve as a justification for the existence of the European model of constitutional proceedings. Firstly, this is due to the importance of the competence of the constitutional courts — here one of their main functions is most fully revealed — function of the protection of fundamental rights and freedoms of man and citizen. Secondly, the power of constitutional courts is found not only in the considered by us constitutional legal proceedings. For example, in Austria, the Constitutional Court has the competence to consider the complaints of citizens (see: [Barfuss, 1984: 533]).
The main feature of this type of constitutional proceedings lies in the fact that it is initiated by citizens (or other individuals), in order to protect their rights. This feature provides explanation of individual proceeding differences of the constitutional proceedings from other proceedings, and of its very nature as well.
With regard to the latter, it should be noted that the direct purpose of the constitutional procedure consists in providing guarantee of rights and freedoms of a person appealing to the Constitutional Court with a complaint on violating them. Indeed, the fact that the complaint is, so to speak, a "direct" one (see: [Pfersmann, 2001: 110]), and not indirect, as for example, in the framework of proceedings at the request of the courts of general jurisdiction, allows to speak about that this procedure is primarily intended to protect the rights and freedoms of persons appealing to the Constitutional Court, and not to resolve the legal question on the constitutionality of this or that regulation to be applied. Thus, the purpose of the constitutional proceedings reveals its nature, which consists in protecting the subjective rights and freedoms.
The specifics of the judicial constitutional process as a public legal process manifests itself, of course, in this type of proceedings. Indeed, one can not but agree with the authors pointing to the fact that in the framework of the constitutional proceedings, the Constitutional Court is not limited to the role of guarantor of the rights and freedoms of the appellant (see: [Les méthodes, 1994]). Constitutional Courts are not limited to a specific case and tend to extrapolate the results of their activities related to the case under consideration, on similar issues in their legal case. Thus, the complaints of citizens are as a protection of their rights and the protection of the constitution, guarantee of its supremacy, i.e. law enforcement in general or, as stated in the German science of constitutional law, of «objective constitutional law» [Zuck, 1998: 65].
Namely the mixed nature of this type of constitutional proceedings, combining both public law and private law aspects, is reflected on the conditions of admissibility of complaints. It can be argued that the requirements for the admissibility of complaints are classic and differ only in increased rigor, which aims to reduce the number of complaints received by the constitutional courts. The need to limit complaints to the Constitutional Court is caused by almost infinite number of hypothetical subjects, having the right to appeal to this Court, which threatens to block the functioning of the public authority (see: [Bôckenfôrde, 1996: 281]).
Conditions, limiting the admissibility of complaints from individuals on violations of their rights and freedoms in the Constitutional Court, can be divided into the following two categories.
In German constitutional proceedings on complaints of citizens on violations of their rights and freedoms, the first category comprises the condition of necessity of the applicant to prove that he appeals to the Constitutional Court for protection of his fundamental rights and freedoms, guaranteed by the paragraph 4 of art. 20, art. 33, 38, 101, 103, 104 of the Basic Law of the Federal Republic of Germany. In addition, the applicant must demonstrate that these rights and freedoms have been violated by the German public authorities (including the legislator). The Federal Constitutional Court quite strictly monitors compliance with these terms and conditions in respect to the violation of the rights belonging to the person, and in relation to the fact that these rights are violated by an act of public authority. In practice, even the slightest inconsistency with these conditions often lead to a denial of admission to the processing of complaints about the violations of rights of individuals, especially when the applicant claims that his rights have been violated by the law directly (normative legal act) and not by an individual legal act (for more on this, see: [Zaher, 1976: 396]).
As in FRG, and in Spain a constitutional complaint amparo may be submitted to the Constitutional Tribunal only in the case of violation of certain rights, guaranteed by the Constitution (Art. 14-29 and 30), which is also a restricted condition for the admissibility of complaints. Differences are in the fact that, firstly, within the framework of the processing not only individuals and legal entities can submit complaints against acts and actions of the authorities, but also the prosecutor and the public defender (defensor del pueblo); secondly, not only the acts of the government can be the object of the proceedings, as in the German constitutional court proceedings, but also the actions of private (physical or legal) persons.
Another limiting condition for the admissibility of complaints in Spanish constitutional proceedings on the complaints of the citizens is that the list of acts of public authorities, on which a complaint may be filed (Art. 42-44 of the Organic Law on the Constitutional Tribunal), Laws of the National Parliament are not included.
Conditions relating to the second category, further restrict the admissibility of complaints to the Constitutional Court. We are talking about the need for prior use of all other legal instruments (besides complaint) that allow to guarantee the rights and freedoms of citizens.
Thus, paragraph 2 § 90 of the Law on Federal Constitutional Court of FRG provides preliminary appeal for the protection of violated rights in courts of general jurisdiction. The same rule applies in the Spanish constitutional proceedings (para. 1, Art. 44 of the Organic Law on the Constitutional Tribunal).
To this category of conditions of admissibility of complaints to the Constitutional Court it may be referred the need to file a complaint within a certain period of time elapsed after the decision, infringing the rights of the individual, has been made by the public authority (Art.42 of the Organic Law on
«The powers of the constitutional courts...»
the Constitutional Tribunal of Spain, § 93 of the Law on the Federal Constitutional Court of FRG).
In addition to the requirements, enshrined in positive law for the admissibility of complaints by citizens, there are tacit, subjective ones, allowing to speak about «filtration» of complaints, which is exercised within the framewoek of a special procedure.
In constitutional proceedings both in Spain and FRG, the admissibility of complaints from persons on the violations of their rights, in contrast to the validation of appeals in other constitutional proceedings, is considered by the so-called sections or chambers (secciones, Kammer) of the Spanish Constitutional Tribunal (Art. 8 of the Organic Law on the Constitutional Tribunal) and the German Federal Constitutional Court (§ 93 of Law on the Federal Constitutional Court of FRG). These chambers are made up of three members of the Constitutional Court. This fact indicates that an excessive number of complaints gave rise to the need to structure the activities of the constitutional courts, not only within frameworks of plenary sessions, Chambers or Senates, but also more of numerous smaller units in order to increase the «carrying capacity» of the Constitutional Court.
The term «filtration» (for more see [Klein, 1995: 227]) is used in the science of constitutional law to signify discretion or excessive judicial discretion within the framework of the procedures for accepting complaints for consideration by sections (Chambers) of the constitutional courts. Of course, the admissibility of complaints from individuals on violations of their rights and freedoms, guaranteed in the constitutions, is carried out by constitutional courts on the basis of above constraints, enshrined in legislation. However, there are other conditions for the admissibility of complaints, making the procedure for the adoption of the latter for processing a certain percentage of judicial discretion. Among them, it can be named the inability to appeal decisions of the sections (chambers) of the constitutional courts and the lack of motivation of their decisions on the refusal to accept the complaint for consideration. Statistics shows discretion or broad judicial discretion when receiving complaints for processing: only 1-5% of complaints go through a stage of filtration (see [Zaher, 1976: 396; Pollner, 1997: 273; Farreres, 1994: 13; Rubio, 1998: 59]).
Among the conditions, the interpretation of which allowed the constitutional courts limit the number of complaints taken for processing, in the German constitutional proceedings on complaints of individuals on violations of their rights and freedoms it can be named the immediacy of violations of rights of this or that person, appealing to a court. In the Spanish constitutional proceedings, initiated by complaints of amparo in accordance with item «d» of para 2, Art. 50 of the Organic Law on the Constitutional Tribunal, a complaint is rejected, if it is materially identical to that which has already been rejected by the Constitutional Tribunal, as well as if its contents are not sufficiently complete, and therefore does not allow Constitutional Tribunal to make a decision.
As a result, it can be stated that despite some differences concerning the admissibility of complaints from individuals on violations of their rights and
freedoms within the frameworks of respective constitutional proceedings, still common to them is increased demand, limiting access of complaints to the Constitutional Court.
In constitutional proceedings initiated by the complaints of persons on the infringement of their constitutional rights and freedoms by the plaintiff serves the person whose rights and freedoms are assumed to be violated. In other words, judicial constitutional process is initiated by a certain person in defense of his subjective constitutional rights. The subjective interest of the plaintiff in the positive outcome of a settlement of the case indicates the possibility of qualifying participants in the process from the side of the plaintiff by a side of the process in the classical (court) sense.
As for the defense, it is most often represented by a public authority or its representative. Participation of public authorities in the framework of the constitutional proceedings, as well as in other proceedings (excluding proceedings on disputes concerning competence) is not mandatory. Despite this, the terminology of positive law indicates that the constitutional (organic) legislator considers the «defendant» in these proceedings as one of the parties to the process, although it is clear that, relatively speaking, in the classic sense he is not as such.
Thus, the German legislation, regulating constitutional proceedings on complaints of persons on the violation of their constitutional rights, provides «entry» (beitreten) of public authorities in the process. The term «side» of the process is used in the Organic Law on the Constitutional Tribunal of Spain (para. 2, Art. 56) with respect to the public authorities involved in the constitutional proceedings on complaints of amparo.
Distribution of the mutual rights and obligations of parties to the process and the constitutional court, as well as other aspects of proceedings are caused by mixed nature of the proceedings, combining both private-legal start, and public-legal elements.
On the one hand, plaintiff has not only the right but also the duty to define the elements of the trial of (requirements, subject, reason, evidence). This obligation is enshrined in positive law (§ 92 of the Law on the Federal Constitutional Court of FRG, article 49 of the Organic Law on the Constitutional Tribunal of Spain). On the other hand, the constitutional court considers that the public interests allow it to deviate from the claims of the plaintiff and change the subject of the proceedings, as well as to continue the trial, even when the plaintiff wishes to abandon the claim (see, for example: [Benda, Klein, 2001: 123, 124]).
It should be noted here: despite the fact that in the context of this proceeding, the Court carries out «particular constitutional control» and is called upon to take a decision on the case within which it most commonly comes about (not) the constitutionality of the individual, rather than regulatory solutions of power. It still has the right to give its decision the absolute power.
Thus, art. 1 § 95 of the Law on the Federal Constitutional Court of FRG with respect to the constitutional proceedings initiated by complaint of
«The powers of the constitutional courts...»
the individual for the protection of its rights, states: «the Federal Constitutional Court may also decide that the adoption of any such (contested) decision, an act may also be recognized as contrary to the Constitution». It also shows that the constitutional procedure, despite its «subjective» or private law nature, contains public-legal elements.
Mixed nature is inherent and to Spanish constitutional proceedings, initiated by complaints of amparo, in witness whereof we can point out (as mentioned above), that the right to appeal here not only private (physical and legal) persons have, but also the public prosecutor (see. [Miguel, 2001: 152]).
Procedure for considering cases within the framework of the constitutional proceedings, initiated by complaints from individuals on violations of their rights and freedoms, is characterized by competition among the plaintiff, i.e. a citizen, filed a complaint with the constitutional court, and the defendant — authority, the act of which is the object (subject) of a trial. Such organization of judicial proceedings is secured in the organic (constitutional) legislation governing constitutional proceedings. For example, para. 1 § 94 of the Law on Federal Constitutional Court of FRG states that in the framework of the constitutional proceedings on complaints of the citizens, «constitutional court provides authority of the land or the federation, act or activity of which is challenged in the complaint, with the opportunity to express wihin a certain period their views on the case». The same right is granted to other authorities (e.g., ministries and courts of general jurisdiction).
Organic Law on the Constitutional Tribunal of Spain also states, that in the framework of the constitutional proceedings, initiated by complaints from people in defense of their rights, «as a defendant or as an act of defense, the constitutionality of which is challenged by the complaint, may be individuals to whom it favors...» (art. 47).This demonstrates the application of the principle of competition within these proceedings.
It should be noted that the application of the principle of competition in truncated form within the powers of the constitutional courts to review individual complaints about violations of their rights and freedoms is not possible. Unlike the abstract constitutional control the Constitutional Court is called upon to guarantee the rights and freedoms to a particular person, in connection with that it is required to provide the necessary procedural guarantees to parties to the process (or at least to the plainteef, who filed a complaint in the protection of its rights). This requirement relates to the application to this type of constitutional proceedings of the European standards of «fair trial», to which all European constitutional proceedings must comply in accordance with the jurisprudence of the European Court on Human Rights (see. [The decision, 1993]).
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